Heard: March 5, 2018.
transfer to the Hampden County Division of the Juvenile Court
Department, the cases were tried before Patricia M. Dunbar,
J., and a motion for postconviction relief, filed on November
28, 2016, was heard by Carol A. Shaw, J.
Supreme Judicial Court granted an application for direct
Merritt Schnipper for the defendant.
L. Sheppard-Brick, Assistant District Attorney, for the
Barbara Kaban, for Youth Advocacy Division of the Committee
for Public Counsel Services & others, amici curiae,
submitted a brief.
Meredith Shih, for Boston Bar Association, amicus curiae,
submitted a brief.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
defendant, Maksim Lustkov, was sixteen years old in October,
1999, when he committed an armed home invasion during which
he shot one occupant three times in front of the
occupant's teenage daughter. A Juvenile Court jury
adjudicated the defendant a youthful offender on indictments
charging armed home invasion and various related offenses,
and he was sentenced to a mandatory minimum State prison term
of from twenty years to twenty years and one
2016, after our decision in Diatchenko v.
District Attorney for the Suffolk Dist., 466 Mass.
655 (2013), S.C., 471 Mass. 12 (2015), the defendant filed a
motion for relief from unlawful restraint pursuant to Mass.
R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001),
arguing that all mandatory minimum sentences violate art. 26
of the Massachusetts Declaration of Rights when applied to
juveniles. He also argued that the evidence was insufficient
to sustain his adjudication as a youthful offender, and that
the judge incorrectly instructed the jury on the issue. A
Juvenile Court judge denied the motion, and we granted the
defendant's application for direct appellate review.
appeal, the defendant primarily argues that in light of this
court's decision in Commonwealth v.
Perez, 477 Mass. 677 (2017) (Perez I), his
mandatory twenty-year minimum sentence is presumptively
disproportionate because it imposes a longer period of
incarceration prior to eligibility for parole than that
applicable to a juvenile convicted of murder without a
finding of extraordinary circumstances based on consideration
of the factors articulated in Miller v.
Alabama, 567 U.S. 460, 477-478 (2012)
(Miller). He further argues that our reasoning in
Perez I applies with equal force to invalidate all
mandatory minimum sentences when applied to juveniles.
reasons that follow, we conclude that the evidence was
sufficient to sustain the defendant's adjudication as a
youthful offender and, although we agree that the judge
failed to instruct the jury that they were required to find
the defendant's qualifying age in order to adjudicate him
a youthful offender, this error does not require reversal. As
to the constitutionality of the defendant's sentence, we
agree that the defendant's sentence violates the
proportionality requirement inherent in art. 26. Our decision
in Perez I, 477 Mass. at 686, requires sentencing
judges to follow an individualized process that allows for
the consideration of mitigating circumstances related to the
juvenile's age and youthful characteristics before
imposing a sentence with a longer period of incarceration
prior to eligibility for parole than that applicable to a
juvenile convicted of murder. The defendant was sentenced to
a mandatory minimum term exceeding that applicable to a
juvenile convicted of murder without a Miller
hearing in violation of the requirements announced in
Perez I, and refined in Commonwealth v.
Perez, 480 Mass. (2018) (Perez II), also
decided today. Accordingly, we remand the case to the
Juvenile Court for resentencing.
summarize the facts relevant to the present appeal in the
light most favorable to the Commonwealth, reserving certain
details for later discussion. At approximately 8:30 P.M. on
October 31, 1999, Fulia Aiken heard a knock at the door of
the house where she lived with her father, Amhet
Aiken. Fulia opened the door and the defendant,
who was armed with a firearm and accompanied by two
accomplices, forced his way inside. All three individuals
were wearing masks. Ahmet, in response to his daughter's
screams, came downstairs and a struggle ensued. During the
struggle, Ahmet knocked off the defendant's ...